Informed consent in the context of open licensing: some questions for discussion

The purpose of this post is to encourage sharing of knowledge and ideas on the topic of modifying informed consent when working with human subjects to accommodate open licensing. Questions can be found at the end of the post.

Researchers who work with human subjects, as is common in disciplines such as health sciences, education, and social sciences, are expected to obtain informed consent from subjects prior to starting research for ethical and legal reasons.

To obtain informed consent, researchers must explain what will happen with the subject’s information and material (if applicable) and the potential consequences for the subject (beneficial and potential harm).

Consent in the context of traditional publishing meant consent to publish in one specific venue, typically under All Rights Reserved copyright. Policies and procedures for informed consent developed in this context will need to be modified in order for authors to publish using open licenses that actively invite re-use (and sometimes modification) through human and machine-readable licenses, in some cases for commercial use.

To illustrate the difference: an educational researcher might wish to obtain and use a photo of schoolchildren in a publication. In the traditional context, this permission involved publication in one venue (one journal or one book), with re-publication requiring permission from the copyright owner (publisher and/or author). Until recently, such material, while not forbidden to the general public, would usually only be found in an academic library. This is still the case with journals and books that are not yet open access. Open access per se expands access to anyone with an internet connection, but free access on the Internet is automatically covered by copyright in all countries that are signatories to the Berne Convention. Open licensing goes beyond expanding access to inviting re-use. In the case of Creative Commons licensing, the invitation is extended via a human readable form that is designed to facilitate easy understanding of permitted uses, a machine readable form that can be used by searchers to facilitate limiting searches to content by desired use, and a legal license that most people are not likely to read.

For example, publication under a CC-BY license would include traditional uses, and other beneficial uses such as re-use by another researcher building on the work of the original. CC-BY would also invite uses that could be harmful to the subjects, such as targeted commercial social media advertising or use of a modified photo in a video game (schoolkid becomes loser kid, perhaps target practice).

This does not mean that such uses would necessarily be legal, rather that open licensing is an invitation that makes such uses more likely to occur. The harmful uses described above are likely a violation of moral rights under copyright, privacy and/or publicity rights. There are potential legal remedies, but these can only be pursued after the harm is done and discovered by a subject with the means and incentive to pursue legal remedies.

The Chang v. Virgin Mobile case is an illustration of what can happen with sensitive material and lack of understanding of the implications of licensing. In brief, a photographer took a photo of a minor girl (family friend) and posted it to Flickr under a CC-BY license. Virgin Mobile interpreted the license as an invitation to use the girl’s photo in an ad campaign. The girl’s family sued Creative Commons (dropped this one) and Virgin Mobile. The case was eventually dropped for jurisdictional reasons (girl in Texas, company in Australia). Lawrence Lessig wrote about the case, arguing that Virgin’s interpretation of copyright was correct, but that the girl still has privacy rights as minor. A bit more on this here:

https://wiki.creativecommons.org/wiki/Chang_v._Virgin_Mobile

The Committee on Publication Ethics has published guidance for journals with respect to one type of particularly sensitive material, medical case reports. Excerpt of their General Principles on this topic:

  • Publication consent forms should be required for any case report in which an individual or a group of individuals can be identified. This requirement also applies when a report involves deceased persons. Examples of identifying information are descriptions of individual case histories, photos, x-rays, or genetic pedigrees. A list of 23 potential identifiers has been published in BioMed Central’s Trials.
  • Journals should not themselves collect the signed consent forms, because the receipt and storage of confidential patient information could subject them to cumbersome security requirements and potential legal liability under applicable privacy or patient information laws, such as the Health Insurance Portability and Accountability Act of 1996 in the USA.

from:

https://publicationethics.org/resources/guidelines/journals%E2%80%99-best-practices-ensuring-consent-publishing-medical-case-reports

These principles are designed to protect journals and their publishers, and only speak to one particular type of sensitive material. For me, this raises some questions. If anyone on the list has answers or ideas, I would love to hear them, on or off-list or as blog comments. If you reply off-list or on the blog and would prefer to be anonymous, please let me know. If warranted, I will summarize responses.

Questions:

  1. COPE’s guidance is for the education and protection of journals. Is anyone aware of efforts for the education and protection of authors and their institutions on the topic of informed consent for open licensing?
  2. Do other publishers or organizations serving publishers have policies, guidance, sample forms, etc. to deal with informed consent and open licensing?
  3. Have any research ethics boards (or similar bodies) revised their guidance to accommodate informed consent and publication under open licenses?
  4. Is anyone aware of cases or analysis of potential implications of licensing for re-use for other types of material involving human subjects besides case reports?
  5. Do you have any other ideas or insights on this or closely related topics that I haven’t asked about?

Cite as:

Morrison, H. (2019). Informed consent in the context of open licensing: Some questions for discussion. Sustaining the Knowledge Commons / Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/2019/08/27/informed-consent-in-the-context-of-open-licensing-some-questions-for-discussion/

 

 

Why I oppose conflating OA and open licensing

In brief, my reasons for opposing conflation of open access and open licensing is that open licenses are not sufficient, necessary, or always desirable for open access.

Not sufficient: there are two reasons why open licenses are not sufficient. One is that there is nothing in CC licenses that obligates any copyright holder or downstream re-user to continue to make a work available at all, never mind free of charge. For example, an obvious beneficiary of works made available for commercial downstream re-use is Elsevier through their toll access search service Scopus. If we consider “free of charge” to be an essential element of open access (I do), CC licenses allowing downstream commercial use are not enough. The second reason is that scholars will always need to study and draw from works that are beyond the scope of research, and for this reason we need strong fair use / fair dealing provisions in copyright. For example, while PLOS is a model for open licensing with respect to articles published, as a scholar in the area of open access economics, I need to be able to quote language from the PLOS website in this area, and the PLOS website per se is All Rights Reserved; my work requires fair dealing rights. PLOS is not unusual in this; differential licensing is common for “CCBY by default” publishers.

Not necessary: works that are online, free to read and free of most technological restrictions on re-use are in effect sufficient for most of the intended purposes of open licensing. Consider what Google is able to do with internet-based works without having to restrict searching to works that are openly licensing. A work in HTML or XML with no technological protection measures (TPM) and no copyright statement (automatic All Rights Reserved copyright in any Berne country) can be used for text mining and portions of the work can be copied, with attribution, under fair dealing. In contrast, a work with an open license that is produced in a format that includes TPMs is less available for the purposes intended by open licensing than many works that are openly licensed. It is important to understand that TPMs are used not only to protect copyright, but also to protect the integrity of works, for example to look and feel of graphics as well as their position with respect to text.

Not necessarily desirable: open licensing, I argue, is not always desirable. For example, researchers who work with human subjects (very common in the social sciences) have a primary ethical duty to protect their subjects from harm. There is a wide range of sensitivity of information shared with researchers, ranging from quasi-public to extremely sensitive. Material such as stories and images shared with researchers for the purposes of advancing knowledge should not be made available on a blanket basis for re-use including commercial purposes. In developing policy attention should be paid to common commercial uses of this kind of material, particularly in the area of social media. Decisions about open licensing are in effect decisions about balancing the benefits of open licensing and our ethical duty to protect human subjects. I argue that our ethical duty to protect human subjects requires a conservative approach, in individual research projects, research support services, and policy-making.


This post is an excerpt of a recent open peer review, presented by way of explanation of why I am posting an open peer review in a journal with a default license of CC-BY under All Rights Reserved copyright. The remainder of the sections of this open review that are relevant to copyright are posted below.

An open peer review of “Few open access journals are Plan S compliant”: third and final round by Dr. Heather Morrison, Associate Professor, University of Ottawa School of Information Studies, and Principal Investigator, Sustaining the Knowledge Commons, a SSHRC Insight Project. Copyright Dr. Heather Morrison, All Rights Reserved (explanation below)…

Copyright Dr. Heather Morrison, All Rights Reserved: explanation The default license for MDPI’s Publications is CC-BY. From the perspective of many open access advocates, open licensing is an inherent part of open access. As discussed by the authors, this assumption forms part of the Plan S compliance criteria; compliance requires CC-BY, CC-BY-SA, or CC-0 licensing, with recognition that funded researchers cannot impose open licensing on third party copyright owners whose works are include in Plan S funded researchers’ works. I argue that conflating open access and open licensing is a major strategic error for the open access movement, and that it is important for open access advocates to understand that arguments opposing open licensing requirements can reflect a strong position in favour of open access. It is a mistake to think that because traditional subscription-based publishers oppose open licensing for business reasons that this is the only reason for this opposition. Oxford University Press is currently imposing differential fees for authors requiring CC-BY, according to my research team that is gathering information on APCs. I oppose CC-BY requirements, but not for the same reason as Oxford. (in the original, from here go to the top of this post).

I have posted similar arguments in the series Creative Commons and Open Access Critique on my original scholarly blog, The Imaginary Journal of Poetic Economics. I plan to republish some of the content on this blog here and/or in other venues as there are some reports that people are having difficulty accessing the blog (hope this is temporary).

Open to closed: how releasing government data into the public domain can result in loss of free public access

Boettcher & Dames (2018) raise some important issues regarding public domain government data. In brief, the U.S. federal government releases data into the public domain by default. This raises 2 potential types of issues:
  • privacy and security of individuals’ data
  • potential for enclosure / privatization of free public services if the government’s data is released as open data but the government does not maintain a free human readable version
From:
Boettcher, J. C., & Dames, K. M. (2018). Government Data as Intellectual Property: Is Public Domain the same as Open Access? Online Searcher42(4), 42–48.

https://repository.library.georgetown.edu/handle/10822/1051174

Abstract
Public domain and open data policies and how they are made. Current status of open data policies in the Federal government are changing with new laws. What is HR4174/S4047 and what does it say and mean? What are trends in government data policies regarding access to that statistical data? This article will give the reader an understanding of federal policies and laws regarding data.

Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS’ statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove’s Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

“Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS”.

Because the content is still available via Dove’s website, the journal is not included on the CLOCKSS’ list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher’s own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: – from the home page:  “CLOCKSS is for the entire world’s benefit. Content no longer available from any publisher (“triggered content”) is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever”.

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons “share your work” website:  [your emphasis added] “Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice“.

The CLOCKSS statement  “CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever” is problematic for two reasons.

1. This does not actually reflect CLOCKSS’ practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS’ CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: “The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License”.

2. This would be even more problematic if it did reflect CLOCKSS’ practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others’ works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal’s first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: “Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved”. This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher’s Association Licensing FAQ states: “one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content” and later “Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work”. If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.

Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another’s work, copyright law is likely the go-to remedy. If a student presents someone else’s work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions?

This is an area where even today’s best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to my Imaginary Journal of Poetic Economics scholarly blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.